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ALL THE LEGAL FURIES (Concluded)

A "BRIEF" DISCUSSION

HARRY BENFORD:

"I'd a swallowtail coat of a beautiful blue
A brief which I bought of a booby
A couple of shirts and a collar or two,
And a ring that looked like a ruby!"

We all know that in legalese a "brief" is a summary of facts in a case coming before a court. BUT, in the context above, does that make sense? If the Judge can't hit on a chance of addressing a British jury, what is he doing with someone else's brief? And who is paying him to take the case?

RONALD ORENSTEIN: I think you are forgetting that in the UK there are two sorts of lawyers, barristers and solicitors. The barrister appears in court, but the solicitor prepares the brief so to get business, a barrister must find a solicitor willing to give him the job of acting on a case, rather than being directly hired by a client, and the barrister thereby is given the brief in the case. So for the judge to make his first appearance in court he must get a brief from somewhere here, by purchasing it from a solicitor rather than by convincing a solicitor that he is the right man for the job (which sounds a bit unethical but may have been OK in the last century). Watch "Rumpole of the Bailey" on PBS Rumpole is always stepping into his clerk's office, hoping to find a new brief in effect, to find he has some paying work coming in.

CLIVE WOODS: The Judge is here recounting how he advanced so far in his profession. Surely the point is that rather than being paid to take on the case as a young barrister, he had to pay himself (i.e. buy the brief) from a "booby".

DAVID CRAVEN: Ah, but the key is that he did not pay the full amount of his fee. He paid a "finders" fee for the brief. This practice was at one time reputed to be common in certain less glamorous areas of the law (for example a PI lawyer who pays a "finders fee" to certain hospital workers in exchange for their help in signing up accident victims (the genesis of the term Ambulance Chaser)). At least in the US, this is highly unethical in most states (at least the ones that I am admitted in) and such conduct will lead to disbarment.

But it apparently still happens in the seamy underbelly of law...

CLIVE WOODS: Given the Judge's other remarks, I wouldn't be at all surprised if it were unethical, even then.

Next Q: anyone know precisely what is a "booby"? "Chambers" says merely "stupid fellow" and similar definitions, but did (does) it have a special meaning in legal circles, presumably a dodgy Solicitor or a foolish litigant??

THEODORE C. RICE: I suppose it could mean that the Learned Judge literally bought the brief of a court case from a somewhat more desperately impoverished solicitor, who was thus termed a "booby" for parting with a potential fee, but then, the LJ would hardly have remarked that he "...never should hit on a chance of addressing a British Jury."

I've always understood it as meaning " briefcase".

RONALD ORENSTEIN: Harry seems to agree with you, but I still doubt that "briefcase" was intended. First of all, was that word in use in England at the time at all? Second, my dictionary (Tormont Webster) gives a number of definitions for "brief", none of which is a briefcase. Third, Gilbert used the word in a rather similar context in Utopia "Whether you're an honest man or whether you're a thief / Depends on whose solicitor has given me my brief" with the legal meaning clearly intended.

I have always thought the word in Trial was meant to imply a legal brief (e.g. a court case with a fee).

J. DERRICK McCLURE: I once saw a student production of Trial where the Council was played by a girl (there were lots of other crazy features of the production too, but it would take too long to describe them), who at the line "Put your briefs upon the shelf", which the Judge sang directly at her, gasped explosively, gathered her black robes tightly about her and sat down with an air of furious agitation. Sure Gilbert wouldn't have approved.

By the way, Ronald, we don't have barristers in the UK they only have them in England. In this country we have advocates.

THEODORE C. RICE: You're right, Ron, about the definitions in the dictionaries, but the fact remains that the Learned Judge says that he was impecunious (to the extent of "...dinners of bread and water...") and probably couldn't afford to buy a brief of a solicitor. I base this on the assumption that even a "booby" wouldn't sell an opportunity to earn a fee for a price significantly lower than the fee he, himself, might earn; and that two lines later, the Learned Judge bemoans his chances of ever appearing in court. Had he bought a brief of advocacy, his appearance would have been a near certainty.

Ian Bradley notes in his volume the definition of a legal brief, but doesn't say definitely that the meaning of the Learned Judge's line is that one.

Considering WSG's penchant for modifying words or pairs of words to suit the meter of the line, I really believe that Harry has the correct interpretation.

TOM SHEPARD: The Learned Judge is listing his meager upwardlymobile assets: A swallowtail coat, a brief, a couple of shirts, a collar or two, a ring....

In this context I feel certain that the "brief" is a personal accessory, namely, a briefcase. It only makes sense that WSG would be consistent in the types of items and accessories that he is itemizing. It makes no sense (to me) that Gilbert would suddenly make reference to a legal brief.

DIANA BURLEIGH: In addition to being the job of pleading for a client in court, a brief is also a bit of paper giving the lawyer the contract to plead. It is printed in a distinctive way and tied with red tape (or at least was, who knows what they get up to now).

As buying the brief of a booby does not entitle our incipient Learned Judge to address a British jury, then either he has the job of appearing in a nonjury case (say a magistrates court) or he has bought, probably for the cost of a glass of claret in a Fleet Street hostelry, an old bit of paper in red ribbon wrapped.

As the verse is about having the appearance of looking like a successful lawyer (coat, fake ruby ring etc) then carrying what would look like work would enhance his image. Perhaps this is the meaning?

JANET PASCAL: This seems like a clever solution. I like it. Another possibility, considering the ludicrous quality of some of Gilbert's own early cases as a barrister, is that the booby's case was so silly that it never made it as far as being heard in court.

Incidentally, since someone asked earlier my understanding is that "booby" to mean a foolish person comes from the booby bird, one of those tropical birds that Europeans thought were stupid because they let themselves be killed so easily.

ARTHUR ROBINSON: Maybe this has been mentioned, but "brief" is also used at the end of the opera in the phrase "Put your briefs upon the shelf".

I just looked in the Oxford English Dictionary under "brief", and found a reference to the briefbag, "the blue or red bag in which a barrister carries his briefs to and from court." This has a citation from 1848 (in Punch). But it looks from the citation as if this was only found in the compound form ("briefbag"), not abbreviated to "brief".

LISA BERGLUND: It seems more likely to me that the "brief which I bought of a booby" would be a legal brief rather than a piece of luggage, although I agree with the suggestion that the LJ is using it as a prop. While he dances his dance in Westminster Hall, the brief in his hand would suggest he has been hired by at least one solicitor, in order to attract other clients.

I incline to this interpretation because of the use of "brief" two verses later: "The rich attorney was good as his word / The briefs came trooping gaily," where "briefs" clearly refers to legal briefs.

THEODORE C. RICE: Diana remarks that a brief could be viewed as a scroll of paper tied with a red ribbon. Would a barrister, then, be likely to carry such a contract around with him? Would he be required to produce it in court?

I would think that, unless the latter is/was true, carrying any old redberibboned paper about would do, and would avoid the expense of purchasing the real McCoy, even from a booby. If he should be required to exhibit the document in court, then I would accept the theory that this might mind you, I say might be Gilbert's intent.

PHILLIP J. CAMERON: Hello everyone. It has been a long time since I have felt that I could usefully contribute to one of the interesting threads at Savoynet.

Given that I am both a G & S aficionado and a Barrister at Law in Sydney, Australia this might just be my opportunity.

I must agree with those of you who have suggested that the Judge's "brief" is a collection of papers rather than those of you who suggest that it is a "briefcase".

Firstly, it is quite improper for a fully robed Barrister to carry a briefcase. A Barrister carries a "blue bag" and nothing else. Senior Counsel often have a red bag. I understand the position to be different in England: Junior Counsel use red bags and Queens Counsel use blue bags. Kings or Queens Counsel do not carry anything to Court that task is left for junior Counsel. This tradition is dying out somewhat at the Sydney Bar. It is considered grossly improper for a Barrister to carry both a blue bag and a briefcase almost a capital offence!

More importantly, a Barrister's brief is the collection of papers which is forwarded to the Barrister by his instructing solicitor/attorney. Traditionally, this is folded lengthwise and has a backsheet which, when folded, is visible from the outside (I hope that this description makes sense). The backsheet sets out the details of the Court in which the matter is proceeding, the names of the parties and the solicitor's details. If the fee for the brief is set by the solicitor, it also contains these details in this case the brief is said to be "marked". The body of the brief contains the "observations for Counsel", an index and the various documents which make up the brief.

The "observations for Counsel" is a summary of the matter and issues which the solicitor thinks are important for the Barrister to know. By reading the observations, the Barrister should obtain a quick overview of the case. The brief is then tied with pink ribbon/tape.

This is why the Lord Chancellor in Iolanthe sings "Ere I go into Court I will read my brief through." One of the great criticisms of Barristers is that they "have not read the brief!"

The brief is not a "contract" between the solicitor and Barrister. The concept of a contract between them is totally foreign in that context. It is one of the extraordinary facets of the solicitor/Barrister relationship that the Barrister is precluded from suing his instructing solicitor for his fees. If the fees are not secured from the solicitor then in most cases bad luck!

The brief contains (if it is well prepared) all of the necessary witness statements and other documents which Counsel might need to present the case in Court.

A Barrister, however, must be briefed by a solicitor to attend Court (this is also commencing to die out at the Sydney Bar). This is vitally important because it is improper for a Barrister to attend Court without a brief. For example, when a new Barrister is admitted to the Bar in Sydney and attends the ceremony in the Banco Court of the Supreme Court of New South Wales he and his master Barrister invariably take some papers with a backsheet tied with the pink ribbon. Not to do so would be quite improper.

I believe that this may well have stemmed from the long tradition of Counsel not "touting" for work. Barristers did not simply hang around the Court hoping to pick up some work. They went there if they had a brief and not otherwise.

This, of course, would be a very significant reason for the Judge to acquire a brief in any way possible. If he did not, he would not have been entitled to attend Court and therefore be seen there. The best way to pick up more work has always been to be seen at Court.

Whether the Judge bought the brief with a glass of claret or otherwise, it clearly allowed him to appear in Court. I do not know why his instructing solicitor is termed a "booby" but it could be that the brief was so poorly prepared that that is what the Judge thought of him.

Alternatively, it could have been that the brief was bought over lunch or with claret (something which, I must admit, does happen at the Sydney Bar). The solicitor might have been a booby by having been taken in by the Judge's fast talk without realizing how junior he, in fact, was. The Judge might have thought that he was a booby for not realizing that he had only just gone to the bar.

Anyway, I hope that these few thoughts help somewhat.

REVERSED EN BANC

DOUGLAS WHALEY: At the Ohio State University College of Law, where I teach, we put on Trial By Jury every five years. I am always the director, and I tell my cast that they have a unique opportunity. Since they are performing for an audience well versed in law, if they enunciate carefully they can get a laugh when the chorus wishes that the judge will "never be reversed en banc."

Here's what it means: if you are a litigant and lose your case at the trial level, you can appeal to the court of appeals. In the usual setup, the appellate judges in any given appellate court are many in number, but typically only a panel of three of them will hear the appeal and render a decision. If you lose that decision you have two choices: one is to appeal to a higher appellate court, but the other is to ask that the entire panel of appellate judges of the court rendering the bad decision sit en banc (meaning the entire panel) and reverse the decision handed down by only three of their number. This is called a hearing "en banc," and it would be particularly galling for a trial court judge to have his opinion reversed by this big a body.

I am proud to say that on every single recording we have of the OSU law school productions, one can actually hear the laugh this line gets. I like to think that Gilbert would be especially pleased that his legal joke still finds its audience.

Page updated 13 November 2004